Overview: Residential Landlord Tenant Act and Unlawful ... · Unlawful Detainer Act Steve...

Overview: Residential Landlord Tenant Act and

Unlawful Detainer Act

Steve Fredrickson Advocacy Coordinator

Northwest Justice Project [email protected]

Steve Fredrickson is an advocacy coordinator with Northwest Justice Project and has been a legal services lawyer since 1972. He received his undergraduate degree from the University of Chicago in 1968 and his law degree from the University of Washington Law School in 1972. His practice emphasizes landlord-tenant and real estate law. He is the author or co-author of a number of publications on landlord-tenant law, including "Tenants' Rights: A Guide for Washington State," University of Washington Press, 1991; "Termination of Tenancies and Unlawful Detainer," Vol. 1C, Ch. 88, Washington Practice, West Publishing Company, 1997; "Landlord-Tenant Super Seminar XI: Residential Evictions & Condo Conversions," Washington Law Institute, 2007, and "Residential Lease Practice," Vol. 2, Ch. 19, WSBA Washington Real Property Deskbook Series: Real Estate Essentials (4th ed. 2009).

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Advising and Representing Advising and Representing Advising and Representing Advising and Representing

LowLowLowLow----Income Tenants Income Tenants Income Tenants Income Tenants

Facing EvictionFacing EvictionFacing EvictionFacing Eviction

Overview of the

Residential Landlord-Tenant Act &

Unlawful Detainer Act

Steve Fredrickson

Northwest Justice Project

January 31, 2014

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History of History of History of History of

the Worldthe Worldthe Worldthe Worldof Residential Landlordof Residential Landlordof Residential Landlordof Residential Landlord----Tenant Law: Tenant Law: Tenant Law: Tenant Law:

Part IPart IPart IPart I

2

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Old LandlordOld LandlordOld LandlordOld Landlord----Tenant LawTenant LawTenant LawTenant Law

Norman

Conquest –

1066 A.D.

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New LandlordNew LandlordNew LandlordNew Landlord----Tenant LawTenant LawTenant LawTenant Law

Uniform Residential Landlord And Tenant Act

Adopted by the National Conference of

Commissioners on Uniform State Laws

1972

3

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States Adopting URLTAStates Adopting URLTAStates Adopting URLTAStates Adopting URLTA

Alabama

Alaska

Arizona

Connecticut

Florida

Hawaii

Iowa

KansasKentuckyMichiganMississippiMontanaNebraskaNew Mexico

OklahomaOregonRhode IslandSouth

CarolinaTennesseeVirginiaWashington

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Washington State Washington State Washington State Washington State

LandlordLandlordLandlordLandlord----Tenant LawsTenant LawsTenant LawsTenant Laws

� Residential Landlord-Tenant Act;

RCW 59.18 – Adopted 1973

� Manufactured/Mobile Home Landlord-Tenant Act; RCW 59.20 – Adopted 1977

� Forcible Entry and Forcible and Unlawful Detainer Act; RCW 59.12 – Adopted 1891

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MANUFACTURED/MOBILE MANUFACTURED/MOBILE MANUFACTURED/MOBILE MANUFACTURED/MOBILE HOME LANDLORDHOME LANDLORDHOME LANDLORDHOME LANDLORD----TENANT TENANT TENANT TENANT ACT RCW 59.20 (1977) ACT RCW 59.20 (1977) ACT RCW 59.20 (1977) ACT RCW 59.20 (1977)

� Covers rental of lot in mobile home park

� Mobile Home Park:

- Two or more mobile or manufactured homes with year-round occupancy in order to produce income

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MANUFACTURED/MOBILE HOMEMANUFACTURED/MOBILE HOMEMANUFACTURED/MOBILE HOMEMANUFACTURED/MOBILE HOME

LANDLORDLANDLORDLANDLORDLANDLORD----TENANT ACTTENANT ACTTENANT ACTTENANT ACT

RCW 59.20 (1977)RCW 59.20 (1977)RCW 59.20 (1977)RCW 59.20 (1977)

IMPORTANT FEATURES

� Must offer tenant one-year rental agreement

� Must have good cause to terminate tenancy

(Different notices than RLTA & UDA)

� List of prohibited landlord actions

� Authorizes sale and transfer of rental agreement

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FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE

AND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACT

RCW 59.12 (1891)RCW 59.12 (1891)RCW 59.12 (1891)RCW 59.12 (1891)

COVERAGE� Residential and commercial landlord-tenant

relationshipsEXCLUSIONS� Tenancies at will (excluded by case law)MODIFICATIONS� RLTA & M/MHLTA add additional procedures

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FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE FORCIBLE ENTRY AND FORCIBLE

AND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACTAND UNLAWFUL DETAINER ACT

RCW 59.12 (1891)RCW 59.12 (1891)RCW 59.12 (1891)RCW 59.12 (1891)

IMPORTANT FEATURES

� Specifies grounds for unlawful detainer and types of unlawful detainer notices

� Service requirements for unlawful detainer notices

� Priority over other civil cases

� Right to jury trial

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Local LawsLocal LawsLocal LawsLocal Laws

Seattle

� SMC 7.20 – Floating Home Moorages

� SMC 7.24 – Rental Agreement Regulation

� SMC 7.25 – Third Party Utility Billing

� SMC 22.206 – Housing and Building Maintenance Code

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Local Laws, cont’d.Local Laws, cont’d.Local Laws, cont’d.Local Laws, cont’d.

� SMC 22.206.160.C – Just Cause Eviction

� SMC 22.210 – Tenant Relocation Assistance

� SMC 22.214 - Rental Housing Registration and Inspection Program. Registration requirement phased in starting 1/1/14.

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� SMC 22.902 – Cooperative Conversion

� SMC 22.903 – Condominium Conversion

� SMC 22.904 – Mobile Homes & Mobile Home Parks

Bellevue

� BCC 9.20 – Section 8 Discrimination

� BCC 9.21 – Relocation Assistance


Kirkland

� KMC 7.74 – Section 8 Discrimination

Pasco

� PMC 5.04.160(a); PMC 5.78. Rental units must be licensed, registered, maintained, inspected and certified.

Redmond

� RMC 6.38 – Section 8 Discrimination

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RESIDENTIAL LANDLORDRESIDENTIAL LANDLORDRESIDENTIAL LANDLORDRESIDENTIAL LANDLORD----

TENANT ACTTENANT ACTTENANT ACTTENANT ACT

RCW 59.18 (1973)RCW 59.18 (1973)RCW 59.18 (1973)RCW 59.18 (1973)

� Covers rental of dwelling unit for residential use

� Rights & Obligations:

- Landlord duties, tenant duties, repair remedies, rent and rule changes, privacy, deposits and fees, lockouts, utility terminations, property seizures, evictions, relocation assistance, attorney's fees

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CoverageCoverageCoverageCoverage & Definitions& Definitions& Definitions& Definitions

RCW 59.18.030RCW 59.18.030RCW 59.18.030RCW 59.18.030

� Applies to rental of a dwelling unit for residential use

� “Dwelling unit”: a structure or part of structure used as a home, residence, or sleeping place including single family residences, multiplexes, apartments and mobile homes

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Exempted Living ArrangementsExempted Living ArrangementsExempted Living ArrangementsExempted Living Arrangements

RCW 59.18.040RCW 59.18.040RCW 59.18.040RCW 59.18.040

� Institutions where residence is incidental to provision of services including prisons, nursing homes, hospitals, convents

� Housing under purchase and sale agreements where residents constitute purchasers

� Hotels, motels, or other transient lodging

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Exempted Living Exempted Living Exempted Living Exempted Living

Arrangements, cont’d.Arrangements, cont’d.Arrangements, cont’d.Arrangements, cont’d.

� Housing for seasonal agricultural workers

� Housing for an employee when the right to occupancy is conditioned upon employment in or about the premises

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Unlawful Detainer ProcessUnlawful Detainer ProcessUnlawful Detainer ProcessUnlawful Detainer Process

Still Applies!!Still Applies!!Still Applies!!Still Applies!!

� RCW 59.12 or RCW 7.28 (ejectment) still applies.

NO LOCKOUTS! To evict, landlord must obtain court order enforced by the sheriff.

� Exception: Tenancy at Will – ejectment action

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Prohibited Lease Provisions Prohibited Lease Provisions Prohibited Lease Provisions Prohibited Lease Provisions RCW 59.18.230RCW 59.18.230RCW 59.18.230RCW 59.18.230

Lease cannot:

� Provide that tenant waives rights or remedies provided for under the Act

� Limit landlord’s liability under the law

� Provide that tenant must pay attorney fees except as authorized by law

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Prohibited Lease Prohibited Lease Prohibited Lease Prohibited Lease

Provisions, cont’d.Provisions, cont’d.Provisions, cont’d.Provisions, cont’d.

� Provide that landlord may take or detain tenant property or have a lien against personal property if tenant owes rent or other charges

� Provide that landlord can sue without notice to tenant (confession of judgment clauses)

� Cannot designate a specific arbitrator

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Deposits & FeesDeposits & FeesDeposits & FeesDeposits & Fees

� Screening Fees RCW 59.18.257

� Holding Fees RCW 59.18.253

� Security Deposit RCW 59.18.260-280

� Nonrefundable Fees RCW 59.18.285

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Common Law Common Law Common Law Common Law

Remedies PreservedRemedies PreservedRemedies PreservedRemedies Preserved

� RCW 59.18.070: … the tenant may, in addition to pursuit of remedies otherwise provided him by law, …

� RCW 59.18.080: delinquent rent or utilities is not a bar to pursue civil remedies for negligent or intentional damages or to defense that no rent is due and owing in an unlawful detainer action

� Breach of the implied warranty of habitability

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Warranty of HabitabilityWarranty of HabitabilityWarranty of HabitabilityWarranty of Habitability

� Foisy v. Wyman, 83 Wn.2d 22 (1973)

Implied warranty of habitability in all residential landlord-tenant relationships.

Can’t be waived, even in exchange for reduced rent.

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Code Enforcement & Code Enforcement & Code Enforcement & Code Enforcement &

Relocation AssistanceRelocation AssistanceRelocation AssistanceRelocation Assistance

RCW 59.18.085

Tenants who are displaced by code enforcement may be eligible for cash relocation assistance of $2000 or three times the monthly rent, whichever is greater. Includes tenants in hotels and motels.

See also, Bellevue City Code 9.21

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Rent Increase & Rule ChangeRent Increase & Rule ChangeRent Increase & Rule ChangeRent Increase & Rule Change

RCW 59.18.140RCW 59.18.140RCW 59.18.140RCW 59.18.140

� Month-to-Month: 30 days written notice before end of rental period

� except Seattle: 60 days whenever rent increase is 10% or more than rent charged during preceding 12 month period

� Lease: ordinarily, cannot increase rent or change rules during term unless both agree

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Late feesLate feesLate feesLate fees

� Buchanan v. Kettner, 97 Wn. App. 370 (1999)

� A mobile home park late fee of $20 plus $2 a day is a permissible liquidated damages clause and not a penalty.

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DV Victim ProtectionDV Victim ProtectionDV Victim ProtectionDV Victim Protection

� RCW 59.18.570-585: Protection for victims of sexual assault, domestic violence, unlawful harassment, or stalking.

� Landlord may not terminate a tenancy, fail to renew a tenancy or refuse to enter into a rental agreement based on tenant, applicant or household member’s status as a victim of sexual assault, domestic violence, unlawful harassment, or stalking. Tenants who are victims may terminate their lease or rental agreement immediately.

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Rent ControlRent ControlRent ControlRent Control

Rent Control

RCW 35.21.830; RCW 36.01.130

Local government is prohibited from adopting any direct or indirect rent control.

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Consumer Protection ActConsumer Protection ActConsumer Protection ActConsumer Protection Act

Consumer Protection Act

State v. Schwab, 103 Wn.2d 542 (1985).

Tenancies that are covered by the Residential Landlord-Tenant Act, RCW 59.18, are not covered by the Consumer Protection Act, RCW 19.86.

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Recent DevelopmentsRecent DevelopmentsRecent DevelopmentsRecent Developments

Tenant Screening - Ch. 41, Laws of 2012, SSB 6315 –Effective June 7, 2012 (RCW 59.18.257)

Landlord must notify the prospective tenant what types of information will be accessed to conduct the tenant screening; what criteria may result in the denial of the application;

If an adverse action is taken, the prospective landlord must provide this information to the prospective tenant in writing in a form substantially similar to the one prescribed by statute.1.31.14 31

Recent Developments, cont’d.Recent Developments, cont’d.Recent Developments, cont’d.Recent Developments, cont’d.

Tenant Screening – Ch. 54, Laws of 2013, SSB 5568 –Effective Jan. 1, 2014 (RCW 59.18.257)

� A tenant screening service provider may not (a) disclose a tenant's, applicant's, or household member's status as a victim of domestic violence, sexual assault, or stalking, or (b) knowingly

� disclose that a tenant, applicant, or household member has previously terminated a rental agreement under RCW 59.18.575.

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Landlord Duties – Ch. 35, Laws of 2013, ESHB 1647 –Effective July 28, 2013

� RCW 59.18.060 is amended to provide that the landlord must maintain and safeguard with reasonable care any master key or duplicate keys to the dwelling unit.

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Warranty of habitability claim not superseded by RLTA

The Residential Landlord-Tenant Act did not supersede common law remedies, including the implied warranty of habitability recognized in Foisy v. Wyman, 83 Wn.2d 22 (1973). RCW 59.18.070. Landis & Landis Const., LLC v. Nation, 171 Wn. App. 157, 286 P.3d 979 (2012) Div. I, 11/8/12.

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Challenges to court’s subject matter unlawful detainer jurisdiction are limited

Failure to include facsimile number and necessary party did not deprive trial court of subject matter jurisdiction and tenant was not entitled to appellate review of claims that were not argued before trial court; abrogating Truly v. Heuft, 138 Wn. App. 913, 158 P.3d 1276 (2007)and Laffranchi v. Lim, 146 Wn. App. 376, 190 P.3d 97(2008), MHM & F, LLC v. Pryor, 168 Wn. App. 451, 277 P.3d 62 (2012), Div. I, 5/21/12.

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Eviction TimetableEviction TimetableEviction TimetableEviction Timetable

Day

� 1 - Rent due date

� 2 - Service of three-day notice to pay or vacate

3

4

� 5 - Payment deadline, unless Saturday, Sunday, or Holiday

(Does RCW 1.12.040 apply?)

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Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.Day

� 6 - Service of eviction summons, complaint, and order to show cause (OTSC optional)

� 7, 8, 9, 10, 11, 12

� 13 - Eviction summons return date (7 to 30 days); deadline for notice of appearance or answer and deadline for paying rent to court clerk or filing sworn statement that rent is not owed (optional; RCW 59.18.375)

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Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.Day

� 14 - Show cause hearing; writ of restitution issued if tenant fails to deliver written response to eviction summons, fails to appear or loses at show cause hearing, or fails to pay rent to court clerk or file sworn statement if required (optional; .375)

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Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.Eviction Timetable, cont’d.

Day� 15 - Sheriff serves writ of restitution at

rental property (King County)� 16, 17, 18� 19 - First day on which sheriff can

enforce writ� 20� 21 - Sheriff's usual, earliest eviction

date (King County)� 22, 22, 23� 24 - Sheriff's statutory deadline for

completing eviction

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Grounds for Eviction Grounds for Eviction Grounds for Eviction Grounds for Eviction

& Notices; RCW 59.12.030& Notices; RCW 59.12.030& Notices; RCW 59.12.030& Notices; RCW 59.12.030

� 3-day pay or vacate

� 3-day notice for waste, nuisance or unlawful business

� 3 day notice for occupying without color of title

� 10-day notice to comply or vacate

� 20-day notice to terminate

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Grounds for Eviction Grounds for Eviction Grounds for Eviction Grounds for Eviction

& Notices, cont’d.& Notices, cont’d.& Notices, cont’d.& Notices, cont’d.

� Gang-related activity; notice?

� Expired term rental agreement; no notice required unless rental agreement requires it.

� Holdover after nonjudicial deed of trust foreclosure or real estate contract forfeiture; additional notice required if occupied by tenant.

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Service of Unlawful Detainer Service of Unlawful Detainer Service of Unlawful Detainer Service of Unlawful Detainer

Notice Notice Notice Notice –––– RCW 59.12.040RCW 59.12.040RCW 59.12.040RCW 59.12.040

� Attempt personal Service (knock)

� Tenant not home

� Leave a copy with person of suitable age & discretion and mail

� Post a notice and mail (add 1 day for mailing)

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Eviction Summons &Eviction Summons &Eviction Summons &Eviction Summons &

RCW 59.18.375 NoticeRCW 59.18.375 NoticeRCW 59.18.375 NoticeRCW 59.18.375 Notice

� Special Summons Required (RCW 59.18.365); 7 to 30 day return date.

� Notice of service of response by facsimile

� Separate RCW 59.18.375 Payment or Sworn Statement Requirement; separate notice requires filed complaint (.375 language can’t be included in summons)

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Return Date on SummonsReturn Date on SummonsReturn Date on SummonsReturn Date on Summons

� 7 - 30 days to appear or answer

� Not less than 9 days (alternative service)

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Order to Show CauseOrder to Show CauseOrder to Show CauseOrder to Show Cause

RCW 59.18.370RCW 59.18.370RCW 59.18.370RCW 59.18.370

� 7 to 30 days notice

� Mail; service deemed complete 3rd day following date of mailing, unless Sat., Sun., Hol.; CR 5(b)(2)(A)

� Striking show cause hearing

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Service of Service of Service of Service of

Summons & ComplaintSummons & ComplaintSummons & ComplaintSummons & Complaint

� Personal Service Required; RCW 4.28.080(15)� On tenant or

� At the person’s usual abode to a person of suitable age and discretion residing therein.

� filed or unfiled

Alternative Service; RCW 59.18.055� Due diligence

� Court order

� Nail and mail

� No money judgment

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Eviction DefensesEviction DefensesEviction DefensesEviction Defenses

� RCW 59.18.380.

� Tenants can assert any legal or equitable defense or set-off arising out of the tenancy.

� Written or oral at show cause hearing;

amending answer – CR 15 w/i 20 days.

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Unlawful Detainer Act Unlawful Detainer Act Unlawful Detainer Act Unlawful Detainer Act ––––

Strict ConstructionStrict ConstructionStrict ConstructionStrict Construction

� Special statutory proceeding

� In derogation of the common law

� STRICTLY CONSTRUED in favor of the tenant

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Procedural DefensesProcedural DefensesProcedural DefensesProcedural Defenses

� Improper court

� Improper unlawful detainer notice

� Improper service or time of UD notice

� Improper summons

� Improper service of summons

� Improper alternative summons service

� Failure to comply with other civil rules

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Substantive DefensesSubstantive DefensesSubstantive DefensesSubstantive Defenses

� Possession not at issue

� Claim of ownership or no L-T relationship

� Retaliation

� Discrimination

� Breach of warranty of habitability

� Just Cause Eviction Ordinance (Seattle)

� Public, Subsidized, § 8, LIHTC cause

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SetSetSetSet----offs & Counterclaimsoffs & Counterclaimsoffs & Counterclaimsoffs & Counterclaims

� Tenants can assert set-offs arising out of tenancy in RLTA UDA. RCW 59.18.380

� Tenants cannot assert counterclaims in UDA. Housing Authority v. Terry, 114 Wn.2d 558 (1990)

� However, if the counterclaim… excuses the tenant's failure to pay rent (or other breach), then it is properly asserted in an unlawful detainer action. See, e.g., Kelly v. Powell, 55 Wn. App. 143 (1989)

Show Cause HearingShow Cause HearingShow Cause HearingShow Cause Hearing

RCW 59.18.380RCW 59.18.380RCW 59.18.380RCW 59.18.380

Answer orally or in writing; amend w/i 20 days. CR 15(a)

Court examines witnesses to ascertain merits;

Issue writ if it appears that the plaintiff has right to be restored to possession; other relief on summary judgment standard;

If no writ, set for trial.

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27

Show Cause HearingShow Cause HearingShow Cause HearingShow Cause Hearing

Standard of ReviewStandard of ReviewStandard of ReviewStandard of Review

� Material factual issues that determine right to possession should not be summarily resolved at a show cause hearing.

� See Indigo Real Estate Services, Inc. v. Wadsworth, 169 Wn. App. 412 (2012); Housing Authority v. Pleasant, 126 Wn. App. 382 (2005); Hartson Partnership v. Goodwin, 99 Wn. App. 227 (2000); see also Tuschoff v. Westover, 60 Wn.2d 722 (1962).

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Show Cause OutcomesShow Cause OutcomesShow Cause OutcomesShow Cause Outcomes

Dismiss complaint;

Deny writ & set for trial;

Issue writ;

Issue writ & set for trial on other relief;

Issue writ & enter final Findings, Conclusions, & Judgment.

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BondsBondsBondsBonds

RCW 59.18.380RCW 59.18.380RCW 59.18.380RCW 59.18.380

Writ issued before final judgment; plaintiff “shall” post bond;

Writ issued before final judgment; defendant may stay writ by paying rent, etc. w/i 3 days after service;

Additional defendant bond requirement; RCW 59.18.390.

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Reinstatement RightsReinstatement RightsReinstatement RightsReinstatement Rights

RCW 59.18.410RCW 59.18.410RCW 59.18.410RCW 59.18.410

Right to reinstate if:

Eviction based on nonpayment of rent;

Lease or agreement has not otherwise expired;

Pay judgment & costs w/i 5 (7?) days.

Relief from forfeiture; RCW 59.12.190.

1/31/14 56

29

Revision of Court CommissionerRevision of Court CommissionerRevision of Court CommissionerRevision of Court Commissioner

RCW 2.24.050RCW 2.24.050RCW 2.24.050RCW 2.24.050

Order of commissioner subject to revision;

File motion within 10 days;

De novo review on the record with deference to findings based on witnesses;

Motion may operate as stay; (not in King County; KCLR 7(b)(8)(B)(iv)).

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Limitation on JudgmentsLimitation on JudgmentsLimitation on JudgmentsLimitation on Judgments

� UDA judgments limited to rent, damages for unlawful detainer (reasonable rental value), court costs & reasonable attorney fees. RCW 59.18.410.

� Judgments are not similarly limited if UDA converted to ordinary civil action.

Munden v. Hazelrigg, 105 Wn.2d 39 (1985).

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Stay/VacateStay/VacateStay/VacateStay/Vacate

No unique procedure for stay/vacate motions in unlawful detainer actions;

Governed by CR 60 & CR 62;

“…on such conditions for the security of the adverse party as are proper,” CR 62(b);

Notice & service; CR 60(e).

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EjectmentEjectmentEjectmentEjectment

� Statutory ejectment action is alternative to UDA. RCW 7.28.

� Ordinary civil action in which parties can join all claims and counterclaims that they have against each other.

� Commenced with 20-day civil summons and civil case schedule.

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Bankruptcy (2005) Bankruptcy (2005) Bankruptcy (2005) Bankruptcy (2005)

11 U.S.C. 11 U.S.C. 11 U.S.C. 11 U.S.C. §§§§ 101, et seq.101, et seq.101, et seq.101, et seq.

� If petition filed before “judgment for possession” entered, automatic stay of commencement or continuation of eviction action until relief from stay granted or bankruptcy concluded.

1.31.14 62

Bankruptcy, cont’d.Bankruptcy, cont’d.Bankruptcy, cont’d.Bankruptcy, cont’d.

� If petition filed after entry of “judgment for possession” stay will apply if:� Debtor discloses judgment;

� Debtor certifies that cure allowed after “judgment for possession;”

� Debtor pays rent due within next 30 days to clerk at filing and certifies payment;

� Debtor pays entire amount due within 30 days of filing and certifies full payment.

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Internet ResourcesInternet ResourcesInternet ResourcesInternet Resources

� Brochures & Pamphlets on Rental Housing and Other Topics – www.washingtonlawhelp.org

� Information on Tenants' Rights -www.tenantsunion.org

� Federal Housing Statutes, Regulations, & Handbooks –

www.hud.gov/offices/adm/hudclips

1.31.14 64

Internet Resources, Internet Resources, Internet Resources, Internet Resources,

cont’d.cont’d.cont’d.cont’d.

� Washington State Statutes (RCW 59: Code Reviser, 360.753.6804) - www.wa.gov or http://access.wa.gov

(Navigation tip: click on “government” + “laws and rules” + “state legislature laws and agency rules”)

� Seattle City Ordinances – www.seattle.gov

(Navigation tip: click on “city departments” + “city clerk” + “online resources” + “municipal code”)

33

1.31.14 65



� King County Ordinances

www.kingcounty.gov

(Navigation tip: scroll to “courts, code & law” + click on “county code”)

� Bellevue City Ordinances -

www.bellevuewa.gov/bellcode

1.31.14 66



� Public & Subsidized Housing Programs -www.hud.gov

(Navigation tip: click on “state info” + “washington” + “rental housing”)

� Housing Discrimination - www.hud.gov

(Navigation tip: click on “topic areas” + “housing discrimination”)

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The End

KING COUNTY BAR ASSOCIATION HOUSING JUSTICE PROJECT

Advising and Representing Low-Income Tenants Facing Eviction

OVERVIEW OF THE

RESIDENTIAL LANDLORD-TENANT ACT

January 31, 2014


Northwest Justice Project 401 Second Avenue South, Suite 407

Seattle, WA 98104 206.464.1519 ext. 248

888.201.1012 Fax: 206.903.0526

[email protected] STEVE FREDRICKSON is an advocacy coordinator with Northwest Justice Project and has been a legal services lawyer since 1972. He received his undergraduate degree from the University of Chicago in 1968 and his law degree from the University of Washington Law School in 1972. His practice emphasizes landlord-tenant and real estate law. He is the author or co-author of a number of publications on landlord-tenant law, including "Tenants' Rights: A Guide for Washington State," University of Washington Press, 1991; "Termination of Tenancies and Unlawful Detainer," Vol. 1C, Ch. 88, Washington Practice, West Publishing Company, 1997; "Landlord-Tenant Super Seminar XI: Residential Evictions & Condo Conversions," Washington Law Institute, 2007, and "Residential Lease Practice," Vol. 2, Ch. 19, WSBA Washington Real Property Deskbook Series: Real Estate Essentials (4th ed. 2009). . This outline is a brief review of the topics it covers. It is not a substitute for legal advice. Persons with a particular legal problem should consult an attorney. Attorneys should supplement this outline with their own legal research.

© 2014 – Northwest Justice Project

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Tables of Contents I. THE RESIDENTIAL LANDLORD-TENANT ACT OF 1973 .................................... 1 A. COVERAGE .......................................................................................................... 1 B. EXCLUSIONS ....................................................................................................... 1 C. TYPES OF TENANCIES ...................................................................................... 1 1. Month to Month Tenancy ....................................................................... 1 2. Tenancy for Specified Time .................................................................... 1 3. Tenancy at Will ........................................................................................ 2 D. CREATION OF THE LANDLORD-TENANT RELATIONSHIP. ...................... 2 1. Month to Month ....................................................................................... 2 2. Tenancy for Specified Time .................................................................... 2 E. DEPOSITS/FEES .................................................................................................. 2 1. Types of Deposits/Fees ............................................................................. 2 a. Application fees ............................................................................. 2 b. Holding Deposit/Fee ...................................................................... 2 c. Damage Deposit ............................................................................. 3 d. Security Deposit ............................................................................. 3 e. Nonrefundable Cleaning Fee ......................................................... 3 f. First and Last Months Rent ............................................................ 3 2. Amount of Deposit ................................................................................... 3 3. Collection of Deposits .............................................................................. 3 a. Written Lease or Rental Agreement ............................................... 3 b. Checklist ........................................................................................ 3 c. Trust Account and Interest ............................................................. 4 d. Receipt ........................................................................................... 4 4. Transfer of Deposits ................................................................................. 4 5. Refund of Deposits ................................................................................... 4 6. Remedies of Tenant .................................................................................. 4 F. LANDLORD DUTIES. .......................................................................................... 4

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G. TENANT REPAIR REMEDIES ........................................................................... 5 1. Current in Rent ........................................................................................ 5 2. Written Notice .......................................................................................... 6 3. Waiting Period ......................................................................................... 6 4. Completion of Work ................................................................................ 6 5. Termination of Rental Agreement .......................................................... 6 6. Court Action or Arbitration ................................................................... 6 7. Estimate Repair Remedy. ........................................................................ 6 8. Do-It-Yourself-Repairs ............................................................................ 7 9. Combining Repair Remedies ................................................................... 7 10. Rent Escrow .............................................................................................. 7 11. Utility Termination Remedies ...................................................................8 H. TENANT DUTIES... ............................................................................................. 8 I. RENT ...................................................................................................................... 9 1. Amount ....................................................................................................... 9 2. Receipt .........................................................................................................9 3. Partial Payments ........................................................................................9 4. Rent Increases ........................................................................................... 9 5. Tenant Liability ......................................................................................... 9 a. Month To Month Tenancy .............................................................. 9 b. Tenancy for Specified Time ............................................................ 9 6. Mitigation of Damages. ............................................................................. 9 J. PRIVACY ............................................................................................................. 10 1. Landlord's Right to Enter ...................................................................... 10 2. Advance Notice ........................................................................................ 10 3. Tenant Consent ....................................................................................... 10 4. Showing to Purchasers or Tenants ........................................................ 10 5. Damages ................................................................................................... 10 K. ILLEGAL LANDLORD CONDUCT ................................................................... 10 1. Lockouts ................................................................................................... 10 2. Utility Terminations ................................................................................ 11 3. Property Seizures .................................................................................... 11 a. No Lien for Rent ........................................................................... 11

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b. Damages ........................................................................................ 11 c. Abandonment Exception ............................................................... 11 d. Writ of Restitution Exception ....................................................... 11 e. Recovery of Property .................................................................... 12 4. Renting Units that are Illegal to Occupy .............................................. 12 a. Condemned or Illegal Units .......................................................... 12 b. Damages & Relocation Assistance ............................................... 12 5. Retaliation. ............................................................................................... 12 a. Protected Activity ......................................................................... 12 b. Prohibited Retaliation ................................................................... 12 c. Presumptions and Rebuttal ........................................................... 12 d. Remedies ....................................................................................... 13 L. TERMINATION OF TENANCY….. ................................................................... 13 1. Month to Month Tenancy ...................................................................... 13 2. Tenancy for Specified Time ................................................................... 13 3. Other Grounds for Termination of Tenancy........................................ 13 4. Termination by Members of Armed Forces ..........................................13 5. Termination for Drug-Related Activity, Gang-Related Activity,

or Assaults................................................................................................ 13 6. Termination by Victim of Assault or Domestic Violence .................... 13 7. Termination in Drug and Alcohol-Free Housing ..................................13 M. WAIVER OF RIGHTS AND REMEDIES ........................................................... 14 1. Waiver Prohibited ................................................................................... 14 2. Exemption from Landlord-Tenant Act Coverage................................ 14 a. Single-Family Residences ............................................................... 14 b. Other Exemptions ........................................................................... 14 N. ATTORNEY FEES ............................................................................................... 14 O. CONSUMER PROTECTION ACT EXCLUSION .............................................. 14 II. LOCAL LAWS ...............................................................................................................14 A. RENTAL HOUSING REGISTRATION PROGRAM .........................................14 B. LICENSING AND INSPECTION PROGRAM ....................................................15

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C. RENTAL AGREEMENT REGULATION ...........................................................15 D. MINIMUM HOUSING CODES ...........................................................................15 E. JUST CAUSE EVICTION ....................................................................................15 F. CONDOMINUM AND COOPERATIVE CONVERSION .................................15 G. TENANT RELOCATION ASSISTANCE ...........................................................15 H. 60-DAY NOTICE OF RENT INCREASE ............................................................16 I. THIRD PARTY BILLING FOR UTILITIES ........................................................16 J. MOBILE HOMES AND MOBILE HOME PARKS .............................................16 K. FLOATING HOME MOORAGES ........................................................................16 L. FAIR HOUSING LAWS .......................................................................................16 APPENDIXES Resources

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I. THE RESIDENTIAL LANDLORD-TENANT ACT OF 1973 A. COVERAGE: Most tenants who are renting a dwelling unit for living purposes are

covered by the Residential Landlord-Tenant Act. RCW 59.18. A dwelling unit includes a mobile home. Tenants renting only the space in a mobile home park are covered by the Manufactured/Mobile Home Landlord-Tenant Act. RCW 59.20.

B. EXCLUSIONS: The following living arrangements are excluded from coverage under

the Residential Landlord-Tenant Act, unless established primarily to avoid its application. RCW 59.18.040.

1. Institutional living arrangements in which residence is incidental to other services

such as nursing homes, dormitories, hospitals, jails, and monasteries. See Sunrise Group Homes v. Ferguson, 55 Wn. App. 285, 777 P.2d 553 (1989).

2. Residents under purchase and sale agreements who constitute purchasers. 3. Residents in hotels, motels, and other transient accommodations as defined in RCW

19.48.010. 4. Residents in single family dwellings on property rented mainly for agricultural

purposes. 5. Seasonal farmworker housing in conjunction with employment. 6. Employees of the landlord whose right to live in the dwelling unit is conditioned upon

their continued employment around the premises. Note: A tenancy that is excluded from coverage under the Residential- Landlord-Tenant

Act is still governed by the unlawful detainer statute, RCW 59.12. C. TYPES OF TENANCIES. There are two major types of tenancies. They are a month-to-

month tenancy and a tenancy for years or for a specified time. The general characteristics of each are as follows.

1. Month to Month Tenancy. A tenant who rents property for an indefinite period of

time with rent payable on a monthly or other periodic basis is considered a periodic tenant from month to month or from period-to-period on which the rent is payable. A tenant who pays rent on a weekly basis is a week to week tenant. RCW 59.18.200.

2. Tenancy for Specified Time. The rental of property for a specified time is a tenancy

for years. This type of tenant is often referred to as having a lease. The term "lease" is not defined in the Residential Landlord-Tenant Act and the term "rental agreement" refers to the agreement covering both periodic tenants and tenants for a specified time. RCW 59.18.030(19).

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3. Tenancy at Will. Persons who occupy residential property for an indefinite period of time without being obligated to pay any rent are generally referred to as tenants at will. These tenancies would ordinarily not be covered by the Residential Landlord-Tenant Act. A tenant at will would include an employee whose employment is terminable at will and who received housing as part of that employment. Najewitz v. City of Seattle, 21 Wn.2d 656, 152 P.2d 722 (1944).

D. CREATION OF THE LANDLORD-TENANT RELATIONSHIP. 1. Month to Month. A month to month tenancy can be created by nothing more than

the payment and acceptance of rent. The rental agreement can be either oral or written, unless the landlord collects a deposit. If a deposit is collected, the rental agreement must be in writing. RCW 59.18.260.

2. Tenancy for Specified Time. A tenancy for specified time or "lease" must be in

writing. A lease for over one-year must be in writing and acknowledged like a deed. Leases that are not in writing or that exceed one year and are not acknowledged create a month-to-month tenancy absent any equitable factors that would make them enforceable for their full term, such as part performance or estoppel. RCW 59.18.210; RCW 59.04.010; RCW 64.04.010-.020; Marriage of Irwin, 64 Wn. App. 38, 822 P.2d 797 (1992); Armstrong v. Burkett, 104 Wash. 476, 177 P. 333 (1918); Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877 (1998).

E. DEPOSITS/FEES 1. Types of Deposits/Fees. Landlords may collect money at the commencement of a

tenancy that is described as a deposit or fee. These sums of money are variously referred to as application fees, holding deposits/fees, damage deposits, security deposits, cleaning fees, and first and last months rent. The characteristics of each are described below.

a. Application fees. A landlord may charge a fee for obtaining background informa-

tion on a prospective tenant, provided that certain written disclosures are made in advance. Disclosures include type of information sought, rental criteria, name and address of consumer reporting agency, right to free copy of report if any adverse action, and right to dispute accuracy of report. The fee is limited to the costs incurred. The landlord must also give written notice of any adverse action. There is a penalty of up to $100 for violations. RCW 59.18.257.

b. Holding Deposit/Fee. A holding fee can be collected after a unit is offered to

the tenant. There must be a written receipt describing its refundability, if any. If the tenant takes the unit, the holding fee must be applied towards the security deposit or the first month's rent. There is a penalty of up to two times the fee or deposit for violations. RCW 59.18.253.

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c. Damage Deposit. This is a sum of money collected by the landlord to indemnify the landlord for any physical damage to the property caused by the tenant in excess of normal wear and tear. Whether the deposit can be applied to other monetary damages sustained by the landlord will depend on the language of the rental agreement or deposit agreement. RCW 59.18.260.

d. Security Deposit. A sum of money collected by the landlord to indemnify the

landlord for any damages, including physical damage to the property, that the landlord may sustain because of the tenant's failure to comply with statutory tenant duties or terms of the rental agreement, e.g., failure to pay rent, utility bills, etc. RCW 59.18.260.

e. Nonrefundable Cleaning Fee. The landlord may collect a nonrefundable fee.

Although these are usually cleaning fees, types of nonrefundable fees are not limited. A nonrefundable fee may not be designated as a deposit or as part of any deposit and the rental agreement must be in writing and clearly specify that the fee is nonrefundable. RCW 59.18.285. A tenant who has paid a nonrefundable cleaning fee may not be charged for normal cleaning. RCW 59.18.130(10).

f. First and Last Months Rent. Money collected by the landlord as first and last

months rent is generally not a deposit. It would usually constitute prepayment of rent and become the property of the landlord at the time it is paid. If it is not a deposit, it is not subject to the ordinary rules regarding damage and security deposits.

2. Amount of Deposit. There are no restrictions on the amount of the deposit that a

landlord may collect. A landlord may increase the deposit of a month to month tenant during the term of the rental agreement by giving written notice of such increase 30 days or more before the beginning of any monthly rental period. RCW 59.18.140.

3. Collection of Deposits. A landlord who collects a sum of money from the tenant as a

deposit or as security for performance of the tenant's obligations in a lease or rental agreement must meet the following requirements.

a. Written Lease or Rental Agreement. There must be a written lease or rental

agreement that includes the terms and conditions under which all or part of the deposit may be withheld upon termination of the agreement. RCW 59.18.260.

b. Checklist. The landlord must provide the tenant at the commencement of the

tenancy with a written checklist describing the condition of the premises, including any existing damages. The checklist must be signed and dated by the parties and the tenant must receive a copy of the signed checklist or statement. The tenant is entitled to one free replacement copy. RCW 59.18.260.

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c. Trust Account and Interest. Money collected as a deposit by the landlord must be placed in a trust account in a bank or with a licensed escrow agent located in Washington. The landlord is entitled to any interest paid on the deposit unless otherwise agreed in writing. RCW 59.18.270.

d. Receipt. The landlord must provide the tenant with a written receipt for the

deposit, including the name, address, and location of the depository and any subsequent changes. RCW 59.18.270.

4. Transfer of Deposits. If the landlord sells the rental property or the status of

landlord is otherwise transferred to another, any money collected as a deposit must simultaneously be transferred to a trust account of the successor landlord and the successor landlord must promptly notify the tenant of the transfer and of the name, address, and location of the new depository. The tenant has additional remedies if the rental property is foreclosed. RCW 59.18.270.

5. Refund of Deposits. The landlord must refund a deposit or give a written statement

describing the basis for retaining any of the deposit within 14 days after termination of the rental agreement and vacation of the premises by the tenant or within 14 days after the landlord learns that the premises has been abandoned in the case of abandonment. Delivery of the statement or refund can be accomplished by personal delivery or by depositing in the mail addressed to the tenant's last known address, postage prepaid, within the 14 day period. RCW 59.18.280.

6. Remedies of Tenant. There is no explicit remedy for collection of a deposit without

a written rental agreement or checklist. Some judges have ruled that failure to provide the tenant with a written rental agreement or checklist entitles the tenant to automatic recovery of the full deposit. A landlord who collects a nonrefundable fee must return it if there is no written rental agreement. RCW 59.18.285. A landlord who fails to give a statement or refund within the 14-day period is liable to the tenant for the full amount of the deposit and is ordinarily barred from asserting any claim to the deposit. In any action brought by the tenant for recovery of the deposit, the landlord is ordinarily barred from asserting any counterclaim. RCW 59.18.280. The court may award up to two times the amount of the deposit for intentional refusal of the landlord to give the statement or refund and the prevailing party is entitled to court costs and reasonable attorney's fees. RCW 59.18.280.

F. LANDLORD DUTIES.

RCW 59.18.060 requires the landlord to keep the premises fit for human habitation during the tenancy and, in particular, do the following:

1. Substantially comply with codes, statutes, and ordinances with respect to conditions

that endanger or impair tenant health or safety. 2. Keep the premises structurally sound.

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3. Keep shared or common areas reasonably clean, sanitary, and safe from defects

increasing the hazard of fire or accident. 4. Provide a reasonable program of pest and infestation control. 5. Keep the premises in as good condition as it was or should have been at the

commencement of the tenancy except for normal wear and tear. 6. Provide reasonably adequate locks and furnish keys to the tenant. 7. Maintain and safeguard master key or duplicate keys to dwelling unit. 8. Maintain all electrical, plumbing, heating, and other facilities and appliances supplied

by the landlord in reasonably good working order. 9. Maintain the dwelling unit in reasonably weathertight condition. 10. Provide trash receptacles and arrange for garbage removal, except in the case of a

single-family residence. 11. Provide facilities adequate to supply heat and water and hot water as reasonably

required by the tenant, unless the building is not equipped for that purpose. 12. Provide smoke detection devices and written notice regarding those devices and

related fire policies and procedures and describing tenant maintenance responsi-bilities. See RCW 48.48.140.

13. Provide tenants with written information approved by the department of health about the health hazards of exposure to indoor mold.

14. Designate to the tenant the name and address of the person who is the landlord. G. TENANT REPAIR REMEDIES. Most landlord duties concern repair and maintenance of the dwelling unit and the premises of

which it is a part. If the landlord violates a repair duty, the tenant has certain remedies under the Residential Landlord-Tenant Act. The types of remedies and the procedure for exercising those remedies are as follows.

1. Current in Rent. The tenant must be current in rent, including any utilities that the

tenant is obligated to pay, before exercising any remedies under the Residential Landlord-Tenant Act. Delinquent rent or utilities are not a bar to the tenant's pursuit of civil remedies for negligent or intentional damage or to the tenant's assertion that no rent is due and owing in an unlawful detainer action. RCW 59.18.080. The tenant can still pursue common law remedies or remedies outside the Residential Landlord-

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Tenant Act, including claims based on breach of the implied warranty of habitability or breach of contract, even if the tenant is delinquent in rent and utilities. RCW 59.18.070. Additionally, the remedies available through local code enforcement authorities are not conditioned upon the tenant's current rent payments.

2. Written Notice. Before exercising any remedy under the Residential Landlord-

Tenant Act, the tenant must deliver a written notice to the landlord or to the person who collects the rent which specifies the premises involved, the name of the owner, if known, and the nature of the defective condition. RCW 59.18.070.

3. Waiting Period. The landlord must commence remedial action as soon as possible

after receipt of such notice but not later than the following time periods, except where circumstances are beyond the landlord's control. RCW 59.18.070.

a. 24 hours where the condition deprives the tenant of hot or cold water, heat, or

electricity or is imminently hazardous to life; b. 72 hours where the condition deprives the tenant of the use of a refrigerator, range

and oven, or major plumbing fixture supplied by the landlord; c. Not more than ten days in all other cases. 4. Completion of Work. The landlord must see that remedial work is completed

promptly and if completion is delayed due to circumstances beyond the landlord's control, the condition must be remedied as soon as possible. RCW 59.18.070.

5. Termination of Rental Agreement. If the landlord fails to remedy the defective

condition within a reasonable time after delivery of written notice, the tenant may terminate the rental agreement and move out immediately without giving the advance notice that is customarily required. The tenant is discharged from payment of rent for any period following the quitting date and is entitled to a pro rata refund of any prepaid rent and any deposit that would otherwise be due. RCW 59.18.090.

6. Court Action or Arbitration. If the landlord fails to remedy the condition within a

reasonable time after delivery of the written notice, the tenant may file a lawsuit or commence arbitration, if so agreed, for any remedy provided under the Residential Landlord-Tenant Act or otherwise provided by law. A court or arbitrator may determine the diminished rental value of the premises as a result of the defective conditions and may enter a judgment against the landlord for rent paid in excess of such diminished rental value and may reduce the tenant rent until the conditions are corrected. The court or arbitrator may also authorize rent deductions for repairs that have been performed by the tenant and may authorize the tenant to make further corrective repairs and deduct the cost from the rent. RCW 59.18.110.

7. Estimate Repair Remedy. If the landlord fails to commence repairs within the

required time period, the tenant may submit to the landlord a good faith estimate of

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the cost to perform the necessary repairs. The tenant may give this notice at the same time as he or she gives the initial notice of defects.

If the work requires a licensed or registered repairperson or will be done by some

other qualified person or will cost more than one month’s rent, then the tenant can contract to have the work performed and deduct the repair costs from his rent. Before contracting to have the work performed, the tenant must deliver his own good faith written estimate of the repair cost to the landlord or his designated agent. If the landlord has ten days to start making the repair, then the written estimate must be given to the landlord at least two days before contracting for the repair work. The maximum amount that can be deducted by the tenant using this remedy is two months’ rent for each repair and a maximum of two months rent during any twelve-month period. RCW 59.18.100.

8. Do-It-Yourself-Repairs: If the repair work need not be performed by a licensed or

registered person, the tenant may make the repair him or her self deduct the cost of the repair from the rent after giving written notice of the defect and waiting the required time period. The maximum amount that can be deducted under the do-it-yourself repair remedy is one month's rent for each repair and a maximum of one month’s rent during any twelve-month period. RCW 59.18.100.

9. Combining Repair Remedies. The Residential Landlord-Tenant Act does not

specifically authorize combining of repair remedies. There is, however, nothing in the Act that prohibits tenant use of both the estimate repair remedy and the do-it-yourself repair remedy or that prohibits tenants in a multifamily dwelling unit from combining their repair deductions to remedy conditions that affect all of them. If tenants seek to combine their repair deductions, they should all join in the written notice to repair and they should all wait the required time period.

10. Rent Escrow. RCW 59.18.115 authorizes a tenant to deposit rent in an escrow

account if the dwelling unit is dangerous or substandard and the following has occurred:

a. The tenant is current in rent; b. There is a condition on the rental premises that the landlord has a legal duty to

correct; c. The condition substantially endangers tenant health or safety; d. The landlord has received written notice of the condition and has failed to start

correcting it after a reasonable time; e. A local building official has certified the existence and dangerousness of the

condition in writing after notice to the landlord; and

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f. It has been determined by the tenant that other repair remedies are inadequate to

correct the condition. Specific procedures for setting up the escrow account and arranging for release of the escrowed rent are specified in the Residential Landlord-Tenant Act.

11. Utility Termination Remedies. City or town utilities must provide electric power

and light or water services to an affected tenant upon request on the same terms and conditions as other utility customers, without requiring that the tenant pay delinquent amounts for services billed directly to the property owner or previous tenant. In these cases, the tenant may deduct from the rent due all reasonable charges paid by the tenant to the city or town for such services, and a landlord may not take reprisals or retaliatory action against a tenant who deducts from their rent payments for these purposes. RCW 35.21.217(5)(a).

H. TENANT DUTIES. RCW 59.18.130 imposes the following duties on tenants: 1. Pay the rent as required by the rental agreement or as otherwise provided by law; 2. Comply with all obligations imposed upon tenants by applicable state and local codes,

statutes, and ordinances; 3. Keep the part of the premises that he occupies as clean and sanitary as conditions

permit; 4. Properly dispose of all rubbish, garbage, and other waste and assume costs of

extermination and fumigation for infestation caused by the tenant; 5. Properly use all electrical, gas, heating, plumbing, and other fixtures and appliances

supplied by the landlord; 6. Not intentionally or negligently damage the structure, equipment, or appliances or

permit any member of his family, invitee, licensee, or any person acting under his control to do so;

7. Not permit a nuisance or waste; 8. Not engage in drug related activity at the premises or allow others to engage in drug

related activity at the premises with the knowledge or consent of the tenant. See RCW 7.43; RCW 7.48; RCW 7.48A;

9. Maintain smoke detection devices including battery replacement as required in RCW

43.44.110(3).

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10. Not engage in physical assaults or assaults with deadly weapons at the rental premises

which result in an arrest. See RCW 7.48.155; 11. Not engage in gang-related activity at the rental premises; 12. Upon termination of the tenancy and vacation of the premises, restore them to their

initial condition except for reasonable wear and tear. I. RENT 1. Amount. State law does not restrict the amount of rent that a landlord may charge.

State law prohibits cities, towns, or counties from regulating the amount of rent that a landlord may charge. RCW 35.21.830; RCW 36.01.130.

2. Receipt. A landlord must provide a written receipt for any cash rental payment and

upon a tenant’s request any other tenant payments. RCW 59.18.063. 3. Partial Payments. Partial payment on a judgment after issuance of a writ of

restitution does not cancel or postpone eviction unless there is a written agreement signed by the parties. The writ must advise the tenant of this provision. RCW 59.18.390.

4. Rent Increases. Ordinarily, rent cannot be increased during the term of the lease or

rental agreement if the tenant has a tenancy for a specified period of time, unless the lease or rental agreement specifically authorizes such changes. The landlord may increase the rent of a month to month tenant by giving written notice of such increase 30 days or more before any rent due date. A rent increase can be implemented upon completion of the term of the rental agreement. RCW 59.18.140.

5. Tenant Liability. a. Month To Month Tenancy. A month to month tenant who defaults in the payment

of rent and abandons the premises is liable for rent for the 30 days following either the date the landlord learns of the abandonment or the date the next regular rental payment would have become due, whichever occurs first. RCW 59.18.310.

b. Tenancy for Specified Time. When the tenancy is for a term greater than month

to month, the tenant is liable for the lesser of the entire rent due for the remainder of the term or all rent accrued during the period reasonably necessary to rerent the premises at a fair rental plus the difference between such fair rental and the rent agreed to in the prior rental agreement plus actual costs incurred in rerenting and court costs and reasonable attorney fees. RCW 59.18.310.

6. Mitigation of Damages. The landlord must make a reasonable effort to mitigate

damages that result from a default in rent and abandonment after the landlord learns

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of the abandonment. RCW 59.18.310. J. PRIVACY 1. Landlord's Right to Enter. The landlord may enter the tenant's premises for the

purpose of inspection, making necessary or agreed repairs, alterations, or improvements, supplying necessary or agreed services, or showing the dwelling unit to prospective purchasers, tenants, or others. RCW 59.18.150. See AGO 1974, No. 10; Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686 (1994); Cranwell v. City of Seattle, 77 Wn. App. 90, 890 P.2d 491 (1995). Fire officials also have a right of entry after obtaining a search warrant upon probable cause. RCW 59.18.150(2).

2. Advance Notice. The landlord must ordinarily give the tenant at least two days’

written notice of his intent to enter the premises, except in the case of emergency or if it is impracticable to do so. The landlord may only enter at reasonable times and may not abuse the right of access or use it to harass the tenant. RCW 59.18.150.

3. Tenant Consent. The landlord may only enter the dwelling unit without the consent

of the tenant in case of emergency or abandonment. The tenant shall not unreasonably withhold consent to entry by the landlord. RCW 59.18.150. However, once the requisite statutory notice is given, the court has suggested that the tenant has no reasonable expectation of privacy other than that entry for inspection may occur. See Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369 (1997) reversing Kalmas v. Wagner, 82 Wn. App. 105, 114, 915 P.2d 546 (1996).

4. Showing to Purchasers or Tenants. If the landlord wants to enter the unit to exhibit

it to prospective or actual purchasers or tenants, the landlord must only give one-day advance notice. The landlord may not unreasonably interfere with the tenant's enjoyment of the dwelling unit by exhibiting it excessively. RCW 59.18.150.

5. Damages. The landlord or tenant may be liable to the other for either an unlawful

entry or an unreasonable refusal to consent to entry for up to $100 for each violation. The $100 penalty is available for a violation that occurs after the landlord or tenant has been served with one written notice listing the date and time of a previous violation. The prevailing party may recover court costs and reasonable attorney's fees. RCW 59.18.150.

Damages are also available for civil rights violations resulting from police assistance

to the landlord's unauthorized entry. See Kalmas v. Wagner, 82 Wn. App. 105, 114, 915 P.2d 546, reversed 133 Wn.2d 210 (1997).

K. ILLEGAL LANDLORD CONDUCT 1. Lockouts. A landlord may not use self-help to evict a tenant. A landlord may not

remove a tenant from a rental unit without a court order authorizing the removal. The

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court order can only be enforced by the county sheriff. A tenant who is illegally deprived of access to the rental unit may recover possession of the rental unit and the prevailing party may recover court costs and reasonable attorney fees. RCW 59.18.290.

2. Utility Terminations. A landlord who intentionally terminates a tenant's utility ser-

vice, except for a temporary interruption to make necessary repairs, may be liable to the tenant for up to $100 a day in addition to actual damages. The prevailing party may recover court costs and reasonable attorney fees. RCW 59.18.300.

3. Property Seizures. a. No Lien for Rent. A landlord has no right to seize or detain a tenant's personal

property, even if the tenant is behind in rent. The common law right of the landlord of distress for rent is abolished for property covered by the Residential Landlord-Tenant Act. Any provision in a rental agreement that purports to create a lien upon a tenant’s personal property is unenforceable. RCW 59.18.230.

b. Damages. Any landlord who takes or detains the personal property of a tenant

without specific written consent and who fails to return the property promptly after written demand is liable to the tenant for the value of the property retained, actual damages, and, if the refusal is intentional, may be liable for damages of up to $500 a day but not to exceed a total of $5000. The prevailing party may recover court costs and reasonable attorney fees. RCW 59.18.230.

c. Abandonment Exception. A landlord may seize and detain a tenant's personal

property if the tenant is in default in the payment of rent and has abandoned the premises. The landlord must ordinarily send the tenant written notice of his intention to sell or dispose of the property not less than 45 days from the date of such written notice. If the tenant makes a demand for the return of the property prior to the time it is disposed of or sold, the landlord must return it, but may condition the return on payment of moving and storage costs. The landlord may not, however, condition the return of the property upon the payment of delinquent rent or other damages. RCW 59.18.310; RCW 59.18.230(4). For discussions of abandonment, see State v. Christian, 26 Wn. App. 542, 613 P.2d 1199 (1980), affirmed, 95 Wn.2d 655, 628 P.2d 806 (1981); Mike v. Tharp, 21 Wn. App. 1, 583 P.2d 654 (1978); Aldrich v. Olson, 12 Wn. App. 665, 531 P.2d 825 (1975).

d. Writ of Restitution Exception. A landlord may be required to remove and store a

tenant's personal property when a writ of restitution is enforced if the tenant serves a written request to do so. A request for storage is presumed if the landlord knows that the tenant has certain disabilities. RCW 59.18.312(1), modifying Parker v. Taylor, 136 Wn. App. 524, 150 P.3d 127 (2007). Return may be conditioned upon payment of moving and storage costs. Property may be dis-posed of or sold after written notice and a waiting period that depends on the value of the property. RCW 59.18.312.

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e. Recovery of Property. If the tenant brings an action to recover property that is

taken or detained in violation of certain sections of the Residential Landlord-Tenant Act, including a replevin action, the court may waive or reduce any bond requirements that would otherwise be required for immediate delivery or redeliv-ery of the property. RCW 59.18.230.

4. Renting Units that are Illegal to Occupy. a. Condemned or Illegal Units. A landlord may not rent a dwelling unit that has

been condemned or declared unlawful to occupy by a governmental agency. RCW 59.18.085.

b. Damages & Relocation Assistance. If a landlord knowingly rents a unit that has

been condemned or declared unlawful to occupy, the tenant shall recover the greater of three months’ rent or treble actual damages plus court costs and reasonable attorney fees. If the tenant terminates the tenancy as a result of the conditions, the tenant shall recover any prepaid deposit and all prepaid rent. If the premises are condemned after the tenant takes occupancy, then displaced tenants are ordinarily entitled to the greater of $2,000 or three months’ rent. Tenants in hotels and motels may also be covered. Local governments may advance the relocation payments to displaced tenants if the landlord fails to pay in a timely fashion. RCW 59.18.085.

5. Retaliation. a. Protected Activity. It is unlawful for the landlord to take or threaten to take

reprisal or retaliation against a tenant because of good faith and lawful complaints to governmental agencies about conditions that may endanger or impair tenant health or safety or assertion or enforcement of tenant rights and remedies under the Landlord-Tenant Act. RCW 59.18.240.

b. Prohibited Retaliation. Reprisal or retaliatory action includes eviction of the

tenant, increasing rent required of the tenant, reducing services to the tenant, and increasing the obligations of the tenant. RCW 59.18.240.

c. Presumptions and Rebuttal. If the landlord initiates any prohibited action within

90 days after the tenant engages in protected activity, there is a rebuttable presumption that the action is reprisal or retaliation. A notice of termination of tenancy is presumed not to be retaliatory if the tenant is in violation of the rental agreement at the time the notice is served. There is a rebuttable presumption that a complaint to an enforcement agency was not made in good faith if it was made within 90 days after a notice of rent increase or other good faith action by the landlord. A notice of rent increase is not presumed to be retaliatory if the notice specifies reasonable grounds for the increase. RCW 59.18.250.

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d. Remedies. In any case where the landlord or tenant prevails on a claim or defense

of retaliation, the prevailing party is entitled to recover court costs and reasonable attorney fees. Neither party may recover attorney's fees to the extent that their legal services are provided at no cost. RCW 59.18.250.

L. TERMINATION OF TENANCY 1. Month to Month Tenancy. A month to month tenancy is ordinarily terminated by

written notice of 20 days or more before the end of a monthly rental period. RCW 59.18.200(1); RCW 59.12.030. A condominium conversion requires 120 days’ notice. RCW 59.18.200(2)(b).

2. Tenancy for Specified Time. A tenancy for a specified time is deemed terminated at

the end of the specified time. RCW 59.18.220. 3. Other Grounds for Termination of Tenancy. A tenancy may also be terminated for

unlawful detainer purposes by a written 3-day notice to pay rent or vacate, a written 3-day notice to vacate for waste, nuisance, or conduct of an unlawful business, a written 10-day notice to comply or vacate, or gang-related activity. RCW 59.12.030.

4. Termination by Members of Armed Forces. Members of the armed forces or their

spouses or dependents may terminate a month to month tenancy with less than 20 days’ notice if reassignment or deployment orders don’t allow a 20-day notice. They may also terminate a tenancy for a specified time prematurely if orders make that necessary, provided that a copy of the orders must be provided to the landlord no more than seven days after their receipt. RCW 59.18.200, .220.

See also, Servicemembers Civil Relief Act, 50 U.S.C. App. § 535. 5. Termination for Drug-Related Activity, Gang-Related Activity, or Assaults. A

tenancy may be terminated on nuisance grounds by service of a written 3-day notice to vacate. RCW 59.12.030. Certain drug-related activity constitutes a nuisance. RCW 7.43; RCW 7.48; RCW 7.48A. Unlawful use of a firearm or other deadly weapon that endangers others in or near the rental premises and results in an arrest may also be a nuisance. RCW 7.48.155. Final Bill Report and commentary suggest that the legislature intended a 3-day notice to vacate for nuisance to be the appropriate termination notice for gang-related activity. Laws of 1998, ch. 276.

6. Termination by Victim of Assault or Domestic Violence. A tenant who is the

victim of certain threats by other tenants, threats or assaults by the landlord, or a victim of domestic violence, sexual assault, unlawful harassment, or stalking may be able to terminate the rental agreement immediately and recover prepaid rent and deposits. RCW 59.18.352; RCW 59.18.354; RCW 59.18.575.

7. Termination in Drug and Alcohol-Free Housing. A landlord of federally assisted drug and alcohol-free housing that meets certain statutory requirements may terminate

14 1.31.14

the tenancy with expedited notice for certain lease or rule violations. RCW 59.18.550.

M. WAIVER OF RIGHTS AND REMEDIES 1. Waiver Prohibited. No rental agreement may provide that the tenant agrees to waive

or to forego rights or remedies under the Residential Landlord-Tenant Act. Any such provision is deemed to be against public policy and unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by him to prohibited, the tenant may recovery actual damages plus reasonable attorney's fees. RCW 59.18.230.

2. Exemption from Residential Landlord-Tenant Act Coverage. a. Single-Family Residences. The Residential Landlord-Tenant Act does not apply

to any lease of a single-family dwelling for a period of a year or more or any lease of a single-family dwelling with a bona fide option to purchase. In these cases, an attorney for the tenant has to approve the exemption in writing on the face of the agreement. RCW 59.18.415.

b. Other Exemptions. A landlord and tenant may agree, in writing, to exempt them-

selves from other specified provisions of the Act under limited circumstances. Such exemption must be approved in writing by the prosecuting attorney, the Consumer Protection Division of the Attorney General's office, or the attorney for the tenant. RCW 59.18.360.

N. ATTORNEY FEES. A rental agreement may not require a tenant to pay the landlord’s

attorney fees, except as authorized by the Residential Landlord-Tenant Act. RCW 59.18.230(2)(c). RCW 4.84.330 may authorize an award of reasonable attorney fees to the prevailing party, however, and take precedence over the RLTA limitation. Wright v. Miller, 93 Wn. App. 189, 963 P.2d 934 (1998).

O. CONSUMER PROTECTION ACT EXCLUSION. Generally, tenancies that are covered

by the Residential Landlord-Tenant Act, RCW 59.18, are not covered by the Consumer Protection Act, RCW 19.86. State v. Schwab, 103 Wn.2d 542, 693 P.2d 108 (1985).

II. LOCAL LAWS. Local jurisdictions may have codes, ordinances, or regulations that provide additional

protections for tenants. Bellevue, Seattle, King County, Pasco, Spokane, and Tacoma, for example, have adopted ordinances that provide additional protections.

A. RENTAL HOUSING REGISTRATION PROGRAM.

Seattle's original Rental Housing Registration Program was repealed by Ordinance No. 118441 on December 9, 1996 (effective January 8, 1997). During the time it was in effect, SMC Chapter 22.202, required that most rental housing units be registered. Lack

15 1.31.14

of registration was a defense to eviction. SMC 22.206.160.C.4; Margola Associates v. Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993). Seattle adopted a new Rental Housing Registration and Inspection Program on October 9, 2012, Ordinance No. 124011. The registration requirement will be phased in starting on January 1, 2014. SMC 22.214.

B. LICENSING AND INSPECTION PROGRAM.

Pasco requires that rental units be licensed, registered, maintained in accordance with Uniform Housing Code standards, and inspected and certified at least once every two years. Ordinance No. 3231, July 7, 1997 (effective January 1, 1998; PMC 5.04.160(a); PMC 5.78. Ordinance is constitutional. City of Pasco v. Shaw, 161 Wn.2d 450, 166 P.3d 1157 (2007).

C. RENTAL AGREEMENT REGULATION.

Seattle's Rental Agreement Regulation Ordinance, SMC Chapter 7.24, prohibits month-to-month rental agreements which require occupancy for more than one month. The effective date of the ordinance was October 3, 1993. Landlords were liable for civil penalties beginning June 3, 1994. Rental agreements must also include a summary of state and city landlord-tenant laws. Rent increases of 10% or more must be preceded by 60 days notice.

D. MINIMUM HOUSING CODES.

Seattle's Housing and Building Maintenance Code (HBMC), SMC Chapter 22.206, imposes more specific maintenance duties on landlords than the Landlord-Tenant Act, particularly in the areas of building and dwelling unit security.

E. JUST CAUSE EVICTION.

Seattle's HBMC prohibits terminations of tenancies or evictions without good cause and makes it a misdemeanor for a landlord to harass, threaten, or retaliate against a tenant. SMC 22.206.

F. CONDOMINIUM AND COOPERATIVE CONVERSION.

Seattle has adopted a condominium conversion ordinance which require that tenants whose incomes are less than 80% of local median income and who elect not to purchase their converted units are entitled to relocation assistance of $500 per unit. SMC Chapter 22.903. Under state law, tenants in dwelling units being converted to condominiums are entitled to at least 120 days notice of termination of tenancy and the opportunity to purchase their units before they are offered to the general public. RCW 59.18.200; RCW 64.34. Seattle has also adopted a city ordinance that provides comparable protections in the case of cooperative conversions. SMC Chapter 22.902.

G. TENANT RELOCATION ASSISTANCE.

Pursuant to RCW 59.18.440, Seattle has adopted an ordinance that requires relocation assistance to tenants at or below 50% of county median income who are displaced by demolition, change of use, substantial rehabilitation, or removal of use restrictions from assisted low-income housing. The level of assistance is currently $3,002, one-half payable by the owner and one-half payable by the City. Tenants are also entitled to a

16 1.31.14

minimum of 90 days notice of termination of their tenancy. SMC Chapter 22.210. The United States District Court, Western District of Washington ruled on August 18, 1995 that the owner payment authorization in the Growth Management Act and the owner payment requirement in Seattle's Tenant Relocation Assistance Ordinance are constitutional. Garneau v. City of Seattle, 897 F. Supp. 1318 (W.D. Wash. 1995). Garneau was affirmed by the Ninth Circuit Court of Appeals. Garneau v. City of Seattle, 147 F.3d 802 (9th Cir. 1998). Bellevue has adopted a relocation assistance ordinance that provides relocation assistance to low-income tenants who are displaced by certain kinds of code enforcement. BCC 9.21.

H. 60-DAY NOTICE OF RENT INCREASE.

Seattle requires that any rent increase of 10% or more must be preceded by a minimum of 60 days prior written notice. SMC 7.24.030. The requirement was incorporated in the Rental Agreement Regulation Ordinance and took effect on October 28, 1998. Ordinance No. 119171, September 28, 1998.

I. THIRD PARTY BILLING FOR UTILITIES.

Seattle regulates the billing of residential tenants by landlords or third parties for utilities that are master metered or unmetered. It requires certain disclosures, limits service charges, and prohibits certain deceptive and fraudulent practices. SMC 7.25. Ordinance No. 121320, November 13, 2003, effective December 13, 2003.

J. MOBILE HOMES AND MOBILE HOME PARKS.

Seattle imposes minimum health and facility standards for mobile home parks. It also requires preparation of a relocation report and plan for change of use or closure of a mobile home park. SMC 22.904.

K. FLOATING HOME MOORAGES.

Seattle regulates floating home moorage rates and limits the grounds for removal of a floating home from its moorage. Floating home owners are granted a right of first refusal to purchase their moorage. SMC 7.20.

L. FAIR HOUSING LAWS.

Seattle, King County, and Tacoma have local fair housing ordinances that prohibit discrimination in rental transactions. SMC 14.08; KCC 12.20; TMC 1.29. Bellevue, Kirkland, and Redmond prohibit discrimination against Section 8. BCC 9.20; KMC 7.74; RMC 6.38.

HOUSING & REAL ESTATE RESOURCES

Brochures & Pamphlets on Rental Housing and Other Topics. www.nwjustice.org

Navigation tip: Click on “law center” + "housing" Information on Tenants' Rights; Links to Other State L-T Laws. www.tenantsunion.org Federal Housing Statutes, Regulations, & Handbooks. www.hud.gov Navigation tip: Click on “Resources” Washington State Statutes. (RCW 59: Code Reviser, 360.786.7573) www.wa.gov or http://access.wa.gov Navigation tip: Click on “Explore Topics” + ““laws and rules” Seattle City Ordinances. www.seattle.gov Navigation tip: Click on “citizen information” +

“city clerk’s office” + “municipal code” King County Ordinances. www.kingcounty.gov Navigation tip: Scroll to “local links” + click on “county code” Public & Subsidized Housing Programs. www.hud.gov Navigation tip: Click on “local info” + “washington, seattle” + “homes/housing” + “find housing” Housing Discrimination. www.hud.gov Navigation tip: Click on “rental help” + “housing discrimination”

http://www.nwjustice.org/http://www.tenantsunion.org/http://www.hud.gov/http://www.wa.gov/http://access.wa.gov/http://www.seattle.gov/http://www.kingcounty.gov/http://www.hud.gov/http://www.wa.gov/

HOUSING & REAL ESTATE RESOURCES General Real Estate WASHINGTON REAL PROPERTY DESKBOOK, 4th ed. (Wash. State Bar Ass'n 2009) Housing & Development Reporter (HDR), Warren, Gorham & Lamont, Inc. Real Estate: Property Law, Stoebuck, Vol. 17, Washington Practice (West Publishing Co. 1995) Real Estate: Transaction, Stoebuck, Vol. 18, Washington Practice (West Publishing Co. 1995) Landlord-Tenant Landlord-Tenant Super Seminar XI, Washington Law Institute, 2007 Termination of Tenancies and Unlawful Detainer, Fredrickson, Vol. 1C, Ch. 88, Washington Practice (West Publishing Co. 1997) American Law of Landlord and Tenant, Schoshinski (The Lawyers Cooperative Publishing Co. 1980; Supplement) Public & Subsidized Housing HUD Housing Programs: Tenants' Rights 3d ed., (The National Housing Law Project 2004; (2010Supplement) Fair Housing Housing Discrimination Law and Litigation, Schwemm (Clark Boardman Co. 1995; Supplement) Fair Housing - Fair Lending, Prentice Hall (Aspen Publishing) Consumer & Bankruptcy Consumer Bankruptcy Law and Practice, 8th ed., National Consumer Law Center 2006 Truth-in-Lending, 2d ed., National Consumer Law Center 1989; Supplement

KING COUNTY BAR ASSOCIATION HOUSING JUSTICE PROJECT

Advising and Representing Low-Income Tenants Facing Eviction

EVICTIONS: THE TENANT’S PERSPECTIVE

January 31, 2014


Northwest Justice Project 401 Second Avenue South, Suite 407

Seattle, WA 98104 206.464.1519 ext. 248

888.201.1012 Fax: 206.903.0526

[email protected] STEVE FREDRICKSON is an advocacy coordinator with Northwest Justice Project and has been a legal services lawyer since 1972. He received his undergraduate degree from the University of Chicago in 1968 and his law degree from the University of Washington Law School in 1972. His practice emphasizes landlord-tenant and real estate law. He is the author or co-author of a number of publications on landlord-tenant law, including "Tenants' Rights: A Guide for Washington State," University of Washington Press, 1991; "Termination of Tenancies and Unlawful Detainer," Vol. 1C, Ch. 88, Washington Practice, West Publishing Company, 1997; "Landlord-Tenant Super Seminar XI: Residential Evictions & Condo Conversions," Washington Law Institute, 2007, and "Residential Lease Practice," Vol. 2, Ch. 19, WSBA Washington Real Property Deskbook Series: Real Estate Essentials (4th ed. 2009). This outline is a brief review of the topics it cov

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